As Canada heads toward a new era of legal
marijuana use, federal prosecutors are still trying to jail people who
grow small amounts of cannabis in their home to sell to others, sending a
tough-on-drugs message that some say is at odds with the new approach.
And they continue to seek criminal records, and sometimes jail time, for
people charged with simple possession of marijuana for their own use.
In a case in Victoria Harbour, Ont., the
public prosecution service is seeking a six-month jail term for a man
who grew 29 plants in his home, and who sold a small amount – one ounce a
week – to his friends, what his lawyers refer to as “social
trafficking.” Stephen Morris is a single father and first-time offender,
and he pleaded guilty.
The prosecutor said in a legal filing he
deserves six months in prison because he grew the plants in a room
adjacent to one occupied by his teenage daughter. “It’s a remarkable
thing to have the government say they want to legalize and still want to
put people in jail for minor infractions,” Osgoode law professor Alan
Young said.
Six months is the length of
the mandatory minimum sentence the Stephen Harper government created
for growing six to 200 plants for the purpose of selling marijuana. In
an unusual twist, the prosecution in the Morris case declared an
intention to seek the mandatory sentence, but dropped it after Mr.
Morris launched a constitutional challenge and the government changed.
The challenge would have put the Trudeau government in the uncomfortable
position of defending a Harper-era minimum sentence related to
marijuana. But the prosecution service is still seeking the same length
of time set out in the minimum.
Federal
prosecutors are also taking a hard line on possession of small amounts
of marijuana for personal use.
“They’re still seeking the imposition of
criminal records for people for an activity that the government has said
they would legalize right away,” Ottawa lawyer Michael Spratt said. In
one case, the prosecution service asked for jail time for a man who
violated a condition of his probation by possessing marijuana. A judge
refused.
The prosecution service said
in response to e-mailed questions from The Globe and Mail that it
follows practices outlined in the Public Prosecution Service of Canada
Deskbook, published in 2014. On drug offences, the book says prosecutors
should stick with the mandatory sentence where it is supported by the
facts and, as a general rule, not discard the minimum to achieve a plea
bargain. “In situations where the facts supporting the MMP [mandatory
minimum penalty] are present and provable, counsel should generally
prosecute that offence and the court will impose the MMP,” the deskbook
says.
Even so, the prosecution service
maintains it is applying the same rules after the election as it did
before.
“The PPSC Deskbook is in force,” spokeswoman Nathalie Houle
said, refusing to comment on the specifics of the Morris case.
Prof.
Young and students participating in Osgoode Hall’s test-case program
became involved in the case at the request of Raymond Morhan, a Barrie,
Ont., lawyer representing Mr. Morris who sought help launching a
constitutional challenge. The Osgoode team wrote a 141-page legal
document arguing that the courts should rule the mandatory minimum cruel
and unusual punishment, and therefore unconstitutional, taking it off
the books. Prof. Young said he intends to argue that the court challenge
should still be heard. He accuses the prosecution service of trying to
shield the mandatory minimum. “If you have it on the books, you have
leverage to get guilty pleas.”
Mr. Morhan said that while the mandatory
sentence remains in force, it sets the bar higher for punishment of
small growers. Canadian courts have struck down several mandatory
minimums passed by the Conservative government.
Both
Mr. Morhan and Prof. Young say that, before the Conservatives brought
in a mandatory minimum penalty in 2012 for growing six to 200 marijuana
plants, Mr. Morris would almost certainly not have done jail time.
Once
marijuana use is legalized and regulations are created for
government-authorized growing and selling, behaviour such as Mr.
Morris’s will be more of a regulatory offence than a crime – like
fishing without a license. He added that Mr. Morris lost his job because
of the criminal charge, and then lost his home. Mr. Young said growing
marijuana next door to his child’s room is not a serious enough
transgression to justify a jail sentence.
Mark
Kleiman, a professor of public policy at New York University, has
created a consulting company that has been hired by Washington State’s
liquor board to help it develop a framework for selling legal cannabis.
“Someone selling four ounces of weed a month is not exactly large-scale
crime. But you want to tell him ‘No, you can’t do it.’” Confiscating his
plants could be all that’s needed, he said.
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